Star of Hope, 76 U.S. 203 (1869)
U.S. Supreme CourtStar of Hope, 76 U.S. 9 Wall. 203 203 (1869)
Star of Hope
76 U.S. (9 Wall.) 203
1. To constitute a voluntary stranding of a vessel, it is not necessary that there should have been a previous intention to destroy or injure the vessel, nor is such intention supposed to exist. It is sufficient that the vessel was selected to suffer the common peril in the place of the whole of the associated interests in order that the remainder might be saved.
1. The stranding is voluntary whenever the will of man does in some degree contribute thereto, though the existence of the particular reef or bank on which the vessel grounds was not before known to the master and though he did not intend to strand the vessel thereon, provided it sufficiently appear that in making the exposure of the vessel. he was aware that stranding was the chief risk incurred by him and that it was not wholly unexpected by him.
3. These principles applied to the facts of this case, and the stranding held to be voluntary, so as to render the damage to the ship thereby caused, and all costs and expenses consequent thereon, a subject of general average contribution.
4. As a general rule, the contributory value of the ship, when she has received no extraordinary injuries during the voyage and has not been repaired on that account, is her value at the time of her arrival at the termination of the voyage. But where, as in this case, the ship has sustained injuries during the voyage and undergone repairs, her contributory value is her worth before such repairs were made. In the absence of other proof on this point, her value in the policy of insurance at the port of departure is competent evidence. From this, however, should be made a just and reasonable deduction for deterioration.
5. The expenses of an ex parte adjustment made by the charterers of a ship at the port of delivery are not chargeable in admiralty on the ship or freight unless the results were adopted and used in the court below by the commissioner who stated the adjustment made under order of the court.
6. Repairs cannot be made by the master unless he has means or credit, and if he has neither and his situation is such that he cannot communicate with the owners, he may sell a part of the cargo for that purpose if it is necessary for him to do so in order to raise the means to make the repairs. Sacrifices made to raise such means are the subject of general average, and the rule is the same whether the sacrifice was made by a sale of a part of the cargo or by the payment of marine interest.
In November, 1855, the firm of Annan, Talmage & Embury chartered at New York the ship Star of Hope, the master, officers, and crew being all employed by the owners. They received on board of her, at the port just named, a large quantity of merchandise on freight deliverable at San Francisco, and also merchandise their own property. They received also, on freight, payable to them for and on account of the owners, two hundred and forty-four tons of coal. Among the merchandise shipped by the charterers and the other shippers (not the owners), were five hundred casks and packages of brandy and other spirituous liquors, stowed next the coal, and one barrel and forty-eight kegs of gunpowder, prepared as "patent safety fuses."
With this cargo on board, the ship sailed from New York in February, 1856, for San Francisco, being in all respects during the voyage kept tight, staunch, well fitted, tackled, and provided with every requisite, and with necessary men and provisions -- all which the charter party bound the owners that she should be -- except as hereinafter set forth.
During the voyage, about the middle of April, 1856, the ship being then on the east side of the southern end of South America, and in about latitude 46 S., longitude 53 W., the weather squally and the sea rough, great quantities of smoke and vapor were observed issuing from the fore and after hatches. After as full an examination as was possible between
decks and otherwise, all on board had every reason to believe the ship on fire below, originating as was supposed in the coal by spontaneous combustion. The hatches were immediately fastened down and everything made tight in order to check as much as possible the progress of the fire at least until a port of succor could be reached. It was known that among the cargo were large quantities of spirituous liquors, and of the prepared gunpowder already described, all which were believed by everyone on board to be highly inflammable and explosive. Great alarm was felt in consequence, and the destruction of the ship, officers, and crew was apprehended by all.
The crew refused to continue the voyage, and the captain determined properly to make for the Bay of San Antonio, on the southeast coast of Patagonia, as the nearest anchorage. In about four days, during which the signs of fire continued to increase, she arrived off that bay, and set the usual signal for a pilot.
In making ready the anchors and getting up the chains from below, these were found quite hot, and there were other signs of fire which greatly heightened the general alarm.
Meantime the weather was such, the wind blowing the ship right on shore, with a heavy sea running, that she could not haul off. The shore being very rocky and precipitous, she could not have gone on there without certain and almost instant loss of vessel, cargo, and all on board. The captain being very unwilling to run into a bay unknown to him without a pilot, waited about three hours for one, but none came. The place, it was evident, was a wild and desolate bay, without sign of human life. All this time the indications of fire below, as well as the weather, continued to grow worse. At length he determined, as the best thing to be done for the general safety, and especially for the preservation of the cargo and lives of those on board, to make the attempt to run in without a pilot, preferring all risks to be thereby incurred rather than to remain outside in the momentary apprehension of destruction to all. Under all the circumstances, the captain was fully justified in this.
In attempting to enter the bay, the lead was kept going, showing successively 8, 7, 6, 5, 4 1/2, and 4 fathoms, and immediately afterwards the ship grounded, and after striking heavily remained fast. The reef or bank on which she grounded was not visible at the time, and the captain was not aware of its existence, though her stranding was one of the chief risks he had assumed in undertaking to run in. The result of the attempt was that before the ship could be got to sea again, she sprung a leak and sustained other very serious injuries in her bottom.
These were such as to fully justify the captain in turning back with her to Montevideo (as the nearest port) for examination and repairs, there being no inhabitants at San Antonio and no sign of human life, and the water taken in by the ship having apparently extinguished the fire below.
He arrived at Montevideo in the end of April, 1856, and on removing the cargo found marks of fire on various portions. The necessary expenses incurred by the ship at this port to enable her to resume her voyage, including repairs, unloading, warehousing, and reloading of cargo &c., were $100,000.
To defray these, the captain, being without credit or means either of his own or his owners (and there being at Montevideo very little market for such goods and merchandise as the ship had aboard), necessarily sold a considerable portion of the cargo. This sale, both as to the mode and the cargo selected, was managed with all due care for the interest of all concerned. Of the cargo thus sold, portions belonged to different parties shipping.
About the 11th September, 1856, the ship left Montevideo, no unnecessary delay having been made there, and arrived at San Francisco on December 7, 1856.
The goods and merchandise of the several shippers remaining on board were in due time and in good order delivered to them.
Upon her arrival at San Francisco, the said Annan & Embury, and one George Hazzard, who had become the assignees of Annan, Talmage & Embury, both as to the charter party and as to their portion of the cargo, and in all respects
the successors in interest of Annan, Talmage & Embury, claimed and obtained the control of the ship and her cargo until the delivery of the latter was completed, and they alone collected and received of the several consignees the freight therefor. Messrs. Annan, Embury & Hazzard delivered to the several owners the goods and merchandise respectively, first obtaining from them the amount of their several contributions to the general average, and they also received so much of the cargo as was deliverable to themselves.
Of $36,000, the price and hire fixed in the charter party, $9,822.20 was paid either by the charterers or their assignees.
The expenses properly and necessarily incurred by the ship from the day when her course was first changed for San Antonio until the day she resumed her voyage, the freight due at San Francisco on the several portions of the cargo not delivered there to the several owners, the value at San Francisco of the ship and of the entire cargo, as well as of the portion delivered there, were matters which were all agreed upon by the parties, though the value of the ship at Montevideo was not known.
In this state of facts, Annan, the charterers, and fourteen other parties, shippers, and a sixteenth party, Embury, filed, in March and April, 1857, in the district court, libels against the ship, then in the port of San Francisco, Annan & Co. for $44,700, and Embury & Co. for $10,115.
The libels, except the last, were in the same form, and were for the nondelivery at San Francisco by the ship of certain quantities of merchandise shipped upon her at New York, to be delivered, at the former port to the several libellants respectively, but which were sold in the course of the voyage by the master at Montevideo to pay for repairs at that port made necessary by the stranding of the ship at the Bay of San Antonio.
The answers to all the libels except to that of Embury & Co. set up substantially that the stranding at the Bay of San Antonio took place under circumstances which made the damage and all expenses consequent thereon a subject
of general average contribution by the ship, freight, and cargo.
The libel of Embury et al. was for the alleged amount paid by them as the consignees of the ship at San Francisco, as the expenses of an average adjustment, made or attempted to be made by them at that port after her arrival, and of an attempted collection of the same.
To this last libel the claimant of the vessel demurred on the ground that the matters alleged did not constitute a cause of contract within the admiralty jurisdiction. He then proceeded to deny the principal allegations of the libel and set up that the adjustment in question was made by the libellants on their own account, as the assignees of the charterers of the ship (Annan & Co), and not on account of the ship or her owners, and was defective, erroneous, and worthless; that at all events the cost of the adjustment should come into the general average, and the ship be liable only for her share in the contribution. That the libellants having, as charterers and consignees of the ship, delivered the cargo to the several consignees thereof without collecting the average thereon, should bear the loss. That the average actually collected by them, and the sum of $30,000 balance remaining unpaid on the charter of the ship, should be set off.
The court referred the case to a commissioner to report an adjustment, upon the assumption that the loss and expenses caused by the stranding of the ship were general average. He did so report. But in his report:
1. He charged the ship or freight with the expenses of the adjustment made at San Francisco by Annan, Embury & Hazzard.
2. He assumed as the basis of his estimate of the contributory value of the ship her valuation in the policy of insurance at Boston, deducting what the repairs at Montevideo cost.
3. He brought into particular average or subject to a deduction of "one-third new for old" certain expenses at Montevideo, which, though incidental to the repairs of the ship, were either not themselves a permanent benefit to her or were not incurred for that purpose. Such as expenses of
1. Surveys, orders, estimates, reports &c.
2. Preparations for making the repairs; labor in heaving her down; wear and tear of materials used therein; anchors, cordage, blocks &c.; boat hire &c.
3. Building staging and use of materials therein &c.
4. Expenses of raising funds (i.e., loss on sale of cargo) &c.
Upon the coming in of the report, exceptions were filed by both parties -- by the libellants on the ground mainly that the loss and expenses were not general average; by the claimant upon grounds affecting the details just mentioned of the report.
Upon these exceptions and the case stated, the matter was argued before the district court, which decided that the damage caused by the stranding of the ship and the loss and expenses consequent thereon (including the cost of the repairs at Montevideo) was a subject of particular average, and not of general average, as contended on behalf of the ship, and held her liable as contended for by the libellants. Its view apparently was that to make the case one for general average, the stranding should have been the result of an intention to effect that particular object. That court also held the ship liable under the last of the libels -- namely that of Embury, for the expenses of the adjustment made by the consignees -- and decreed accordingly. The circuit court affirmed the decree of the district court.
Subsequently, and before the appeal to this Court, it was discovered that a serious error had been committed in the amount inserted in the decree upon the first libel, $26,469. It had been stipulated between the parties that from any sum found due to the libellants, Annan, in their libel, should be deducted $26,177.80, the balance due by them as the charterers of the ship, and the decree entered for the difference. But a small portion of this balance was in fact deducted, so that the decree, instead of being for $26,469, should have been but for $4,291.13.
On behalf of the ship, a motion was made to correct this error of figures. The court, however, refused to correct the
decree on the ground of the great lapse of time since the entry of the decree in the district court, and because the alleged error, if it existed, might be corrected on appeal in this Court.
It appeared also that another large sum, about $14,000, which should have been deducted from the same judgment for averages received by the same libellants was never deducted.
Both these errors of figures were attributable to the adjuster who made up the adjustment for Embury and to whom the casting up of the amounts awarded in the decree had been subsequently committed by the ship's agent at San Francisco.
The case was now brought to this Court on these grounds:
1. That the damage to the ship caused by her stranding at the Bay of San Antonio and the loss and expense consequent thereon were a subject of general average, and not of particular average, as decided by the court below.
2. That even if this were not so and they were a subject of particular average, then the exceptions to the commissioner's report should have been sustained.
3. That the error of figures in entering the decree in favor of Annan et al. should be corrected, by reducing the same to $4291.13.